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NCAA Refuses to Separate Alston Backpay from House Settlement Terms

The NCAA insists on an all-or-nothing approach to the settlement amid judicial pushback to the consolidation of three antitrust cases

Noah Henderson

Dec 17, 2022; Philadelphia, Pennsylvania, USA; Saint Joseph's Hawks guard Erik Reynolds II (2) shoots between Villanova Wildcats forward Cam Whitmore (22) and guard Jordan Longino (15) in the second half at Michael J. Hagan Arena. Mandatory Credit: Kyle Ross-Imagn Images
Dec 17, 2022; Philadelphia, Pennsylvania, USA; Saint Joseph's Hawks guard Erik Reynolds II (2) shoots between Villanova Wildcats forward Cam Whitmore (22) and guard Jordan Longino (15) in the second half at Michael J. Hagan Arena. Mandatory Credit: Kyle Ross-Imagn Images / Kyle Ross-Imagn Images

At a final approval hearing in Oakland on Tuesday, U.S. District Judge Claudia Wilken declined to grant final approval of the highly publicized House v. NCAA settlement, sending all parties back to the drawing board to revise several contested provisions.

Formal approval of the settlement would deliver the most significant structural change to collegiate sports in the NCAA’s 119-year history, completing the transition of Division I collegiate sports from amateur to professional competition.

The settlement would usher in several professional concepts to the NCAA model, including roster limits, direct NIL revenue sharing between schools and their athletes, a NIL salary cap, and an NCAA-run auditing arm to monitor NIL salary cap manipulation.

Wilken expressed broad support for the agreement, stating from the bench, “basically, I think it is a good settlement. Don’t quote me. And I think it’s worth pursuing.” Still, she made clear that certain aspects of the deal were not ready for final approval.

“I think some of these things could be fixed if people tried to fix them, and that it would be worth their while to try to fix,” she added.

Wilken’s concerns centered on fairness to current and future athletes — particularly the proposed roster limits that could eliminate opportunities for thousands of athletes and the 10-year long term, which would bind future college athletes still in grade school today.

The attorneys involved must redraft the settlement quickly to address the court’s concerns and receive Judge Wilken's blessing. Time is of the essence. With summer camps starting soon and the first revenue-share payments scheduled for July 1, schools need clarity on the rules they will play under in only a few short months. 

Formally titled In re College Athlete NIL Litigation, the case consolidates three antitrust actions: House v. NCAA, Hubbard v. NCAA, and Carter v. NCAA.

  • House seeks to challenege NCAA restrictions against revenue sharing between schools and athletes.
  • Carter challenges the legality of any NCAA-imposed restrictions on athlete compensation.
  • Hubbard focuses narrowly on retroactive damages — distributing backpay to athletes denied Alston-related education payments between 2019 and 2024.

Most objections to the settlement come from the House litigation. As a result, Judge Wilken posited that Hubbard and Carter should be settled and continue to rework House independently in light of discontent with the agreement. Quickly, NCAA counsel denied the notion and reaffirmed that their approach would be all or nothing.

Ultimately, through a unified settlement of all three cases, the NCAA looks to create its version of a standard document found within professional sports, a Collective Bargaining Agreement (CBA). CBAs in professional sports outline rules, regulations, and working conditions for athletes and universally feature the new features added to college sports through the House settlement. 

CBAs are the product of often intense negotiations between labor unions and management, resulting in terms adequately representing the labor force. For this reason, CBAs receive statutory exemptions to antitrust (monopoly) laws and allow professional sports to have conditions of employment foreign to any non-unionized industry –– drafts, max contracts, salary caps, trades, etc.

However, the House settlement is not collective nor bargained; it is merely an agreement between the NCAA and plaintiff attorneys without union-management negotiations. The NCAA has embarked on a novel and unprecedented strategy to import professional sports structures without collective bargaining to secure legal protection through a class-action settlement rather than labor negotiation.

Without proceeding in legal strategy speculation, the NCAA has declined to pursue a partial settlement for Hubbard or Carter, maintaining that the resolution of all three cases must proceed through a unified agreement. 

The NCAA’s decision binds $200 million earmarked for Hubbard damages that provides restitution for athletes previously denied academic award money. These funds are facially separate from NCAA initiatives regarding professionalization — revenue sharing, roster limits, and new enforcement mechanisms.

It is now apparent that the Hubbard funds, a small portion of the total $2.8 billion damages, will not be distributed without litigation unless the NCAA can establish its unique quasi-CBA structure. 

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Noah Henderson
NOAH HENDERSON

Professor Noah Henderson teaches in the sport management department at Loyola University Chicago. Outside the classroom, he advises companies, schools, and collectives on Name, Image, and Likeness best practices. His academic research focuses on the intersection of law, economics, and social consequences regarding college athletics, NIL, and sports gambling. Before teaching, Prof. Henderson was part of a team that amended Illinois NIL legislation and managed NIL collectives at the nation’s most prominent athletic institutions while working for industry leader Student Athlete NIL. He holds a Juris Doctor from the University of Illinois College of Law in Urbana-Champaign and a Bachelor of Economics from Saint Joseph’s University, where he was a four-year letter winner on the golf team. Prof. Henderson is a native of San Diego, California, and a former golf CIF state champion with Torrey Pines High School. Outside of athletics, he enjoys playing guitar, hanging out with dogs, and eating California burritos. You can follow him on Twitter: @NoahImgLikeness. 

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